About: Ilona Bray

Ilona Bray is an attorney who gave up the active practice of law to edit and author books and articles for Nolo. Her working background includes both solo immigration practice and working or volunteering as an immigration attorney with nonprofit organizations in Seattle and California.

Recent Posts by Ilona Bray

Is AG Sessions Confusing Denied Asylum Applications With “Fake” Ones?

Attorney General Jefferson Beauregard Sessions wasn’t short on opinions regarding people who apply for asylum in the United States, as set forth in an October, 2017 speech to the Executive Office for Immigration Review (commonly known as U.S. Immigration Court).

Unfortunately, much of the information he presented was baseless or wrong.

Let’s start with Sessions’s assertion that the immigration court system is becoming “overloaded with fake claims.” Mr. Sessions provided no source for this information. Indeed, finding statistics on fake claims would be practically impossible in a setting where the immigration judge’s decision depends mostly on the applicant’s own account of what persecution occurred (or is likely to occur) and why.

But we do know that about half the people who apply for asylum in the U.S. are denied, and that denial rates are going up. Could this have led Mr. Sessions to believe that anyone who wasn’t granted asylum had filed a “fake” claim?

Such a conclusion would ignore one of the most obvious truths about U.S. asylum law: It’s complicated. Without getting too deep into the weeds, let’s just say that people who are really, truly terrified of returning to their home country can and often are refused asylum because they:

  • can’t connect the persecution they experienced to a personal characteristic such as race or religion, but were, for instance the victims of widespread violence
  • spent too long in another country on the way to the U.S.
  • made a few mistakes or minor inconsistencies when testifying, leading the judge to find them not “credible”
  • are part of a group (such as guerrillas) that may also have blood on its hands, leading to a conclusion that the applicant is barred as a persecutor of others, or
  • didn’t apply within a year of reaching the United States and wasn’t granted an exception to this rule.

(Find out more in Nolo’s article Bars to Receiving Asylum or Refugee Status.)

Ask any immigration lawyer. We’ve all seen heartbreaking cases where the client had obviously suffered, and might face death after being deported, but was denied asylum based on some fine point in the law. Those claims aren’t fake, they just don’t make the legal cut.

Then also consider that huge numbers of applicants have no attorney to clue them in to the details, and may lose a case that could have been a winner with better awareness of what aspects of it to highlight.

But should we defer to Sessions’s authority on this matter and assume he knows things we don’t? That’s hard to do, after noting the other errors in his speech: for example, where he states that “dirty immigration lawyers” are “encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”

Uh, nope. That’s technically impossible. The “credible fear process” only applies to people entering at U.S. borders or airports, and almost none of them have lawyers at that point. Plus, most of the immigration lawyers I’ve met are quite clean.

Sessions also states that, “DHS found a credible fear in 88 percent of claims adjudicated. That means an alien entering the United States illegally has an 88 percent chance to avoid expedited removal simply by claiming a fear of return.” I’m no statistician, but given that each applicant must convince the border official of the merits of his or her own claim of fear, there’s no way that a general average equates to an 88% chance of success for each entrant.

And finally, let’s look at Sessions’s statement that, “There are almost no costs, but potentially many rewards, for filing a meritless asylum application.” It’s true that the U.S. government charges no asylum application fee, but as mentioned, applying for asylum without an attorney is likely to get one nowhere—and by the time an applicant takes a challenging case through immigration court, the Board of Immigration Appeals, and the federal circuit court, thousands of dollars in legal fees are inevitable. Sure, a few applicants can find attorneys to work pro bono, but only those with the strongest cases are likely to be able to do that.

If this is what Sessions calls a “generous system,” it’s frightening to imagine what an un-generous one might look like.

Five Practical Things EVERYONE Should Know About Trump’s DACA Termination

President Donald J. Trump . (Official White House Photo by D. Myles Cullen)

I was tempted to put this entire title in capital letters, as hysterical as that might look. But for thousands of people in the United States today, the recently announced ending of the Deferred Action for Childhood Arrivals program (DACA) feels like a true emergency.

And indeed, the decision will eventually mean that huge numbers of undocumented young people, students, and workers—who came forward, were vetted, and applied for a temporary work permit—may (unless Congress acts) see that grant stripped from them. And, thousands of schools and employers will lose the benefit of their work and other contributions.

But in other ways, the current situation is not quite as dire as it sounds—or doesn’t need to be, with the proper actions taken going forward.

So if you are a DACA holder or know someone who is (you might be surprised!), or you are an employer, here are some key things to understand and share:

  1. No one is being deported right away. This is a phaseout. DACA holders still have a legal basis upon which to remain in the United States. Immigration attorneys and advocates are keeping watch around the country for any official action taken to the contrary. USCIS has not changed its policies regarding sharing DACA applicants’ personal information with ICE for followup enforcement; and will do so only in cases that don’t involve serious crimes or threats to public safety. Despite a few widely reported cases, enforcement actions against DACA holders remain rare.
  2. People who hold valid DACA work permits can use them up through the day they expire. The new policy specifically says that current recipients will not have their status revoked unless some separate reason arises (such as a criminal conviction). So if, for example, your DACA work permit expires on March 6, 2018, you can work up to and including the entire day of March 6, 2018.
  3. An important renewal opportunity exists for the next few weeks. Some, but not all current DACA holders can apply to renew their status. That renewal will be good for an entire two years, even as the rest of the program gets phased out. The only people who can renew are those whose DACA grant expires between September 5, 2017 and March 5, 2018 (assuming they meet the other criteria). Unfortunately, people whose DACA grant had already expired before September 5 cannot renew; and no one can apply for a first-time DACA grant going forward.
  4. The renewal opportunity depends on getting an application into USCIS’s hands by October 5, 2017. Pick a trusted mail or delivery service, because it doesn’t matter when your renewal application is postmarked. It has to be received and “accepted” by USCIS by October 5. There’s some question about what “accepted” means. It certainly doesn’t mean “approved.” But it might mean that if USCIS looks at it and says, “This isn’t complete, we can’t let it in the door,” you will have missed out. (Normal USCIS practice would, however, be to issue a Request for Evidence,” so don’t panic—but do triple check your renewal application and fee before mailing it.)
  5. Employers cannot ask an employee whether he or she has DACA, nor take action (such as firing or termination) based on knowing that someone currently has DACA. Even well-meaning employers should beware of crossing this line. The employer may simplify notify an employee that he or she will need to present an updated work permit (EAD) on the date of its expiration.

As tense as the situation is, a good deal of help is becoming available to people who currently have DACA, or have had it in the past. Large employers are looking into providing legal help; and some DACA holders may have even become eligible for another status, such as permanent residence.

Also, community organizations are mobilizing to provide free or low-cost help. Start calling around—but do so soon, if you’re looking at renewal.

And as always, beware of scammers who take advantage of a tough situation! Check lawyers’ credentials, and avoid mere “immigration consultants” and “notarios.”

Should We Believe Assurances That ICE Won’t Arrest Undocumented Immigrants Fleeing Hurricane Harvey?

Commentators have been understandably worried for non-citizens battling flooding and other problems caused by Hurricane Harvey, which hit the coast of Texas on August 25, 2017.

Not only is their basic safety at risk, but there’s the matter of the new immigration enforcement priorities under the Trump administration.

This really means no priorities at all, but an environment in which anyone who encounters Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP), regardless of their close ties to the U.S. and past agreements that they were law-abiding and not a priority for deportation (including with DACA grants), are fair game for deportation.

Non-citizens have been arrested while at their most vulnerable: for example, when appearing in court to testify to domestic violence, when leaving hypothermia shelters, and when attending check-in interviews at ICE offices.

But now, in response to these concerns, FEMA has issued a statement assuring the public that, “Routine non-criminal immigration enforcement operations will not be conducted at evacuation sites, or assistance centers such as shelters or food banks.”

That’s welcome news, at least compared with other possible things the statement could have said. But it’s also not entirely reassuring, because it leaves open the door to “criminal” enforcement operations.

As anyone who’s following the new enforcement environment knows, Trump had originally assured the public that ICE priorities would focus on criminals or “bad hombres,” then proceeded to define anyone who had crossed the U.S. border illegally as a criminal.

In this situation, the climate of fear that’s been created could end up costing human lives. And it also makes it far to easy for scammers to prey on the immigrant community; including the recently reported fake ICE agents that have been banging on doors and ordering people to evacuate (presumably in order to steal their stuff).

If Friendly Neighbors Are So Important, Why Not Ask About Them When Buying?

An impressive 50% of prospective homebuyers say their top priority when it comes to neighborhood features is having friendly neighbors, says a recent Berkshire Hathaway HomeServices Homeowner Sentiment Survey.

This feature ranked higher for survey respondents than school district (at 41%), financial considerations (39%), and perceived investment value (37%).

The results reflect well on the common sense of today’s homebuyers. After all, a difficult or hostile neighbor can impact your personal financial considerations (for instance, if you get into a dispute over something like who pays for a damaged fence, and end up bringing or facing a lawsuit).

And a difficult neighbor can impact your home’s investment value, if a major issue makes the house harder to sell (“Pay no attention to that 12-foot spite fence, we’re suing the neighbor to take it down, tempted though we are to take a chainsaw to it.”)

At least neighbor problems don’t typically bring down an entire school district. But they can make life miserable, in the very place where you want to feel safe and relaxed.

But the question remains, why do so few people ask probing questions about a house’s neighbors before they buy? I can only report anecdotally, but as someone who visits open houses regularly, has sold a house that brought in multiple offers, and regularly talks to people about real estate, it seems that the matter of neighbor relations is often left for a post-closing surprise.

Real estate agents certainly know how important the neighbor issue is. I recently visited an open house at the property next to mine, introduced myself and was told by the agent, “Oh good! I can tell people I’ve met the neighbor!” (I guess the subtext was that I looked normal, phew.)

You now know why we included neighbor issues on the “Questions for Seller” worksheet that’s included in Nolo’s Essential Guide to Buying Your First Home. You can certainly get specific in your questioning, too, as in, “We notice the house across the street has five motorcycles parked on the front lawn. Has that led to issues with noise or anything?”

And there’s no need to stop with questions to the home seller. Try asking local friends for information, particularly those who follow any neighborhood listservs. They might tell you who the local “trolls” are, and know about other neighbor issues, disputes, or subjects of tension.

Also, as you go in and out of open houses, ask people on the street how they like living there, and how friendly the neighborhood generally. If you’re lucky enough to spot one of your prospective new home’s neighbors outdoors, perhaps weeding or walking the dog, definitely engage that person in conversation. You may be surprised at what you find out.

When Will You Personally Know an Immigrant Affected by New Enforcement Regime?

Someone should create one of those “seven degrees of separation” rules with regard to immigrants—that is, an indication of how many close friend-or-family ties away each person in the U.S. is from someone whose run-in with immigration authorities has them thinking, “What?! Not him/her! Is that really legal?”

Such exclamations and protestations have been common in many recent deportations from the United States. Even people who think mass removal is a good idea in general often want to carve out exceptions when they realize it’s going to be applied to a friend or long-time community member.

For instance, The New York Times ran a story called “He’s a Local Pillar in a Trump Town. Now He Could Be Deported.” It described how a town in which the majority voted for Trump was shocked when the manager of a local Mexican restaurant was arrested for being undocumented.

The article quoted one town resident as saying, “I think people need to do things the right way, follow the rules and obey the laws, and I firmly believe in that . . . But in the case of Carlos, I think he may have done more for the people here than this place has ever given him. I think it’s absolutely terrible that he could be taken away.”

For people within my own circle, that “not him” moment came when news surfaced about our long-ago high school theater director, Ruben Van Kempen—who came to the U.S. from Holland the year that most of my classmates were born—being refused Social Security retirement benefits because “The Department of Homeland Security is unable to verify the immigrant document you submitted as evidence of your lawful alien status.”

That’s bureaucratic error piled onto bureaucratic error—not only were the records missing, but Van Kempen had become a U.S. citizen decades ago, meaning that “lawful alien” is no longer the appropriate way to describe him. To suggest that he’s NOT lawful means that he’s undocumented, which is of course grounds for deportation. But fixing that error should be easy, right?

Not in the current harsh immigration enforcement regime. Van Kempen’s case turned into a nightmare of calls to Social Security and the Department of Homeland Security, neither of which agencies would offer help or answer his questions—until there was public outcry and his Congressional Representative stepped in and started asking questions.

But as Van Kempen told the Seattle Times, “I would still be considered an alien in my own country, and my file would still be sitting there buried, if a friend hadn’t thought to contact the Seattle Times . . . But your newspaper can’t profile every immigrant with a problem. That leaves me very unsettled.”

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